Montijo v. Robert Sherer & Co. , 5 Cal. App. 736 ( 1907 )

Defendant Ryan was an employee of Robert Sherer Co. and was joined with the members of that copartnership in an action for damages for forcible entry upon premises of which plaintiffs allege themselves to have been the owners and in the actual possession at the time of such entry, to wit, on February 2, 1906, and to and until February 14, 1906, and at divers times between said dates.

Ryan was served with summons February 20, 1906, and the members of Sherer Co. served on February 21st and 23d, respectively. Sherer Co. answered, but Ryan failed to do so, and on March 5, 1906, the default of Ryan for not answering was regularly entered, and thereafter, on March 13, 1906, judgment was taken against him as prayed for in the complaint, to wit, for the sum of $1,500 (the same to be trebled) and for costs.

On March 17, 1906, he served notice on plaintiff's attorney of his intention to move the court to set aside the said default and to permit him to answer the complaint filed in the action. The motion was noticed to be made on the records and files in said action and the affidavits of himself and attorney, and his verified answer to the complaint, a copy of which was served with the notice. The grounds specified were that "said defendant failed to answer in time through inadvertence, mistake and excusable neglect."

Appellants claim the order granting the motion was error for two reasons: 1. The grounds of the motion are stated conjunctively in the notice and both affidavits filed, and the showing made fails to support the conjoined reasons of inadvertence, mistake and excusable neglect; 2. The affidavit of merits is insufficient.

The affidavits are not to be construed with the strictness applied to a pleading in matters of form, and if they show facts to justify the action of the court on the ground of inadvertence, mistake or excusable neglect it will be sufficient. By the affidavits and verified answer the following facts are made to appear: That the Los Angeles Interurban Railway Company was the owner and in the peaceable possession of the premises described in plaintiff's complaint at the time of the alleged entry thereon by defendants, or, at least, that Ryan so believed. That Ryan was a laborer in the employ of his codefendants and it was in such employment he went upon said lands. That upon being served he called the attention of his employers to the service of summons upon him, and was told by them that he need not bother about the matter, as the suit would be taken care of by the Los Angeles Interurban Railway Company. That he relied upon such statement and filed no answer. Under the circumstances he had a right to rely upon the statement that the corporation whom he believed to be the real party in interest would protect him. The showing by the affidavit of Attorney Crutcher as to the reasons why he did not answer for defendant Ryan before his appearance to make the motion we do not think material.

The "records and files" upon which the motion was also based are not before us, but it does appear from the affidavit of Albert Crutcher that an answer had been filed on behalf of the defendants Sherer Co. This was a circumstance that the court should have and no doubt did consider in the exercise of its discretion in the matter. That there were other pleadings before the court raising the same issues of fact as those which the defendant in default asked to have tried in his behalf might well and properly have influenced the court in case of doubt. It was authorized to examine them for the purpose of determining the motion. (Lakeshore Co. v. Modoc Co., 108 Cal. 263, [41 P. 472].) The discretion of the court in vacating the default and setting aside the judgment thereon appears to have been liberally exercised with a view to the trial of the case on its merits. This was in accordance with the universal rule. (Merchants' Co. v. Los Angeles Co., 128 Cal. 621, [61 P. 277].)

Neither of the affidavits filed contains a showing that alone would be sufficient as an affidavit of merits, but the verified answer denies every material allegation of the complaint. This has been held sufficient too often by the supreme court to be considered an open question. (Fulweiler v. Mining Co., 83 Cal. 129, [23 P. 65]; Merchants' Co. v. Los Angeles Co., 128 Cal. 621, [61 P. 277]; Melde v. Reynolds, 129 Cal. 314, [61 P. 932].)

Order appealed from affirmed.

Allen, P. J., and Shaw, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 17, 1907.